*

The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District

of Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0325p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

ALEJANDRO SOTO-SANCHEZ,

 Defendant-Appellant.

X

-

-

-

-

>

,

-

-

-

N

No. 08-3541

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 07-00558-1—John R. Adams, District Judge.

Argued: July 29, 2010

Decided and Filed: October 5, 2010 

Before: GIBBONS and COOK, Circuit Judges; VAN TATENHOVE, District

Judge.*

_________________

COUNSEL

ARGUED: Jaime P. Serrat, Cleveland, Ohio, for Appellant. Phillip J. Tripi,

ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.

ON BRIEF: Jaime P. Serrat, Cleveland, Ohio, for Appellant. Laura McMullen Ford,

ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. 

_________________

OPINION

_________________

VAN TATENHOVE, District Judge. Alejandro Soto-Sanchez pled guilty to

illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326.

1
No. 08-3541 United States v. Soto-Sanchez Page 2

1

The 2007 edition of the United States Guidelines Manual was used in the preparation of SotoSanchez’s PSR.

On appeal, Soto-Sanchez challenges his sentence. He contends that the district court

erred by applying a sixteen-level enhancement to his offense level under U.S.S.G.

§ 2L1.2 based on his prior conviction for attempted kidnapping. For the reasons set forth

below, we affirm Soto-Sanchez’s sentence.

I.

A single-count Indictment charged Alejandro Soto-Sanchez with illegally

reentering the United States after deportation in violation of 8 U.S.C. § 1326. The

Indictment noted that Soto-Sanchez had previously been removed and deported from the

United States subsequent to a conviction for felony attempted kidnapping in Michigan

state court in 2000. Soto-Sanchez pled guilty to the illegal reentry charge without the

benefit of a plea agreement. At his rearraignment, the United States expressed its belief

that Soto-Sanchez would be subject to a sixteen-level enhancement to his base offense

level under the guidelines at sentencing because his prior attempted kidnapping

conviction qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A). SotoSanchez indicated his intent to object to such an enhancement. The district court ordered

the parties to brief the issue prior to sentencing. 

The United States Probation Office prepared a presentence investigation report

(“PSR”) which calculated Soto-Sanchez’s base offense level at 8.1

 As expected, the PSR

recommended a sixteen-level enhancement to Soto-Sanchez’s offense level based on his

prior Michigan state court conviction. The PSR also recommended a three-level

reduction due to Soto-Sanchez’s acceptance of responsibility. With a total offense level

of 21 and a criminal history category III, Soto-Sanchez’s sentencing guideline range was

46 to 57 months. 

At sentencing, the court heard oral arguments from the parties regarding the

disputed guideline enhancement. After reviewing the Michigan kidnapping statute at

issue, the district court found that Soto-Sanchez had been convicted of a crime of
No. 08-3541 United States v. Soto-Sanchez Page 3

violence within the meaning of § 2L1.2(b)(1)(A). The court further found that it could

not consider the police report related to Soto-Sanchez’s attempted kidnapping conviction

in determining whether the offense qualified as a crime of violence. Having determined

that the PSR correctly calculated his guideline range, the district court sentenced SotoSanchez to 46 months in prison. This appeal followed. 

II.

A.

“Sentences imposed post-Booker are reviewed for reasonableness–including for

procedural error in the calculation of the guideline range such as defendant asserts in this

case.” United States v. Bartee, 529 F.3d 357, 358 (6th Cir. 2008) (citing Gall v. United

States, 552 U.S. 38, 128 S. Ct. 586, 596, 169 L.Ed.2d 445 (2007)). This Court reviews

legal conclusions regarding the application of the United States Sentencing Guidelines

de novo. United States v. Hover, 293 F.3d 930, 933 (6th Cir. 2002). Accordingly, this

Court reviews de novo the question of whether Soto-Sanchez’s attempted kidnapping

conviction constitutes a crime of violence for the purposes of U.S.S.G. § 2L1.2. See

United States v. Garcia-Serrano, 107 Fed. Appx. 495, 496, 2004 WL 1800869 (6th Cir.

Aug. 9, 2004) (citing United States v. Humphrey, 279 F.3d 372, 379 (6th Cir. 2002)).

B.

United States Sentencing Guideline § 2L1.2(a) prescribes a base offense level of

8 for those convicted of unlawfully entering the United States. Section

2L1.2(b)(1)(A)(ii) then directs that this offense level be increased sixteen levels if the

defendant previously was deported after conviction for a felony that is a “crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary defines the term “crime of

violence” for purposes of this section to mean “any of the following offenses under

federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault . . . or

any other offense under federal, state, or local law that has as an element the use,

attempted use, or threatened use of physical force against the person of another.” Id. at

§ 2L1.2, cmt. n. 1(B)(iii) (emphasis added). The commentary further explains that
No. 08-3541 United States v. Soto-Sanchez Page 4

“[p]rior convictions of offenses counted under subsection (b)(1) include the offenses of

aiding and abetting, conspiring, and attempting, to commit such offenses.” Id. at

§ 2L1.2, cmt. n. 5 (emphasis added).

On appeal, Soto-Sanchez does not dispute that he was previously deported after

a Michigan conviction for attempted kidnapping. Instead, he argues that the Michigan

statute under which he was convicted is broader than the generic kidnapping offense

contemplated by the guidelines. Accordingly, Soto-Sanchez contends that the Court

must look further into the details of his conviction to determine whether he was

necessarily convicted of generic kidnapping. Soto-Sanchez specifically urges the Court

to examine the police report describing the incident that gave rise to the kidnapping

charge and find that he did not commit a crime of violence. 

In Taylor v. United States, 495 U.S. 575, 579 (1990), the Supreme Court

considered whether second-degree burglary under Missouri law constituted a “violent

felony” for purposes of the Armed Career Criminal Act (“ACCA”), and specifically

18 U.S.C. § 924(e)(1). If so, a mandatory minimum sentence of fifteen years in prison

would apply to the defendant. See Taylor, 495 U.S. at 578; 18 U.S.C. § 924(e)(1). The

statute at issue defined “violent felony” to include any crime punishable by

imprisonment for a term exceeding one year that “is burglary . . . .” Taylor, 495 U.S. at

578 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The Court, however, found that “‘burglary’

in § 924(e) must have some uniform definition independent of the labels employed by

the various States’ criminal codes.” Id. at 592. Specifically, the Court found that

“Congress meant by ‘burglary’ the generic sense in which the term is now used in the

criminal codes of most states.” Id. at 598. The Court held that “a person has been

convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any

crime, regardless of its exact definition or label, having the basic elements of unlawful

or unprivileged entry into, or remaining in, a building or structure, with intent to commit

a crime.” Id. at 599.

The Taylor Court then adopted a categorical approach for ascertaining whether

a defendant is subject to an enhanced penalty under the ACCA. Id. at 600. Under this
No. 08-3541 United States v. Soto-Sanchez Page 5

approach, the sentencing court is generally required to consider only the fact of

conviction and the statutory definition of the prior offense in determining whether the

defendant has committed a violent felony. Id. at 601. The court may not consider the

particular facts underlying the conviction. Id. at 600-01. 

In circumstances in which the state statute defines the crime more broadly than

the generic offense, however, a modified categorical approach applies. See United States

v. De Jesus Ventura, 565 F.3d 870, 874 (D.C. Cir. 2009). Then, according to Taylor, the

court may look beyond the statute and the fact of conviction to the indictment or

information and jury instructions. Taylor, 495 U.S. at 602. The court must determine

whether these documents show that the jury was required to find all elements of the

generic offense in order to convict the defendant. Id. In other words, the court still may

not consider the details of the defendant’s crime. See id. at 600-01. The court may use

these additional materials “only to determine which crime within a statute the defendant

committed, not how he committed that crime.” See United States v. Woods, 576 F.3d

400, 405 (7th Cir. 2009) (emphasis in original). 

The Taylor Court adopted the categorical approach in part to avoid “the practical

difficulties and potential unfairness” of a broader factual inquiry. Taylor, 495 U.S. at

601. Of a fact-based approach, the Court asked, “Would the Government be permitted

to introduce the trial transcript before the sentencing court, or if no transcript is

available, present the testimony of witnesses?” Id. The Court continued, “If the

sentencing court were to conclude, from its own review of the record, that the defendant

actually committed a generic [offense], could the defendant challenge this conclusion

as abridging his right to a jury trial?” Id. Later, in Shepard v. United States, 544 U.S.

13, 25 (2005), the Supreme Court expanded on this reasoning, noting that allowing a

sentencing judge to consider evidence of the facts of a prior offense raises the concerns

underlying Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey,

530 U.S. 466 (2000). Specifically, it allows the sentencing judge to “make a disputed

finding of act about what the defendant and state judge must have understood as the

factual basis of the prior plea . . . .” Shepard, 544 U.S. at 25. The Sixth and Fourteenth
No. 08-3541 United States v. Soto-Sanchez Page 6

2

Notably, kidnapping is not enumerated as a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii)

or a “crime of violence” under U.S.S.G. § 4B1.2(a)(2). Further, these provisions include in their

definitions of violent crimes any offense that “involves conduct that presents a serious potential risk of

physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2). No such clause appears

in the definition of “crime of violence” for the purposes of U.S.S.G. § 2L1.2. Thus, an offense could

constitute a violent crime under the ACCA or § 4B1.2, but not under § 2L1.2, or vice versa. 

Amendments, however, “guarantee a jury’s finding of any disputed fact essential to

increase the ceiling of a potential sentence.” Id.

Since Taylor, this Court has employed the categorical approach in determining

whether an offense constitutes a “crime of violence” under U.S.S.G. § 4B1.2, for

purposes of the career offender provision, see United States v. Arnold, 58 F.3d 1117,

1121 (6th Cir. 1995), and in determining whether an offense constitutes a “crime of

violence” for purposes of U.S.S.G. § 2L1.2, see Garcia-Serrano, 107 Fed. Appx. at

496.2

 Further, in Shepard, the Supreme Court expressly extended Taylor’s categorical

approach to convictions following guilty pleas. 544 U.S. at 19. Accordingly, this Court

will employ the categorical approach in determining whether Soto-Sanchez’s conviction

under Michigan’s former kidnapping statute is a conviction for a crime of violence

within the meaning of U.S.S.G. § 2L1.2. 

The former Michigan statute on which Soto-Sanchez’s attempted kidnapping

conviction was based reads as follows:

Any person who wilfully, maliciously and without lawful authority shall

forcibly or secretly confine or imprison any other person within this state

against his will, or shall forcibly carry or send such person out of this

state, or shall forcibly seize or confine, or shall inveigle or kidnap any

other person with intent to extort money or other valuable thing thereby

or with intent either to cause such person to be secretly confined or

imprisoned in this state against his will, or in any way held in service

against his will, shall be guilty of a felony, punishable by imprisonment

in the state prison for life or for any term of years.

Mich. Comp. Laws Ann. § 750.349 (1999). In light of Taylor, in order to determine

whether this offense qualifies as a “crime of violence” within the meaning of U.S.S.G.

§ 2L1.2, this Court first must determine whether Michigan’s former kidnapping offense

“substantially corresponds” to the generic crime of kidnapping. Taylor, 495 U.S. at 602.
No. 08-3541 United States v. Soto-Sanchez Page 7

Soto-Sanchez argues that the generic, contemporary meaning of kidnapping is

found in the Model Penal Code (“MPC”). Under the MPC,

A person is guilty of kidnapping if he unlawfully removes another from

his place of residence or business, or if he unlawfully confines another

for a substantial period in a place of isolation, with any of the following

purposes:

a. to hold for ransom or reward, or as a shield or hostage; or

b. to facilitate commission of any felony or flight thereafter; or

c. to inflict bodily injury on or to terrorize the victim or another; or

d. to interfere with the performance of any governmental or political

function.

Model Penal Code § 212.1 (2001). Additionally, “[a] removal or confinement is

unlawful within the meaning of this Section if it is accomplished by force, threat, or

deception, or, in the case of a person who is under the age of 14 or incompetent, if it is

accomplished without the consent of a parent, guardian, or other person responsible for

general supervision of his welfare.” Id.

The MPC makes it a separate, lesser crime of felonious restraint to knowingly

“restrain another unlawfully in circumstances exposing him to risk of serious bodily

injury” or “hold another in a condition of involuntary servitude.” Model Penal Code

§ 212.2 (2001). And the MPC defines “false imprisonment” as knowingly restraining

another unlawfully so as to substantially interfere with his or her liberty. Model Penal

Code § 212.3 (2001). Thus, under the MPC, in order for a crime to constitute

“kidnapping,” the perpetrator must have a specific purpose other than confining his

victim or removing his victim from one place to another; no such specific purpose is

required for the crimes of false imprisonment or felonious restraint.

Although Soto-Sanchez lobbies the Court to adopt the MPC definition of

kidnapping for the purposes of U.S.S.G. § 2L1.2, the Supreme Court in Taylor stated

that the generic, contemporary meaning of an offense is the way the offense is defined
No. 08-3541 United States v. Soto-Sanchez Page 8

3

The Taylor Court did note, however, that the generic, contemporary definition of burglary

“approximates that adopted by the drafters of the Model Penal Code.” Taylor, 495 U.S. at 598 n.8. 

4

In its brief, the United States notes that both the D.C. Circuit in De Jesus Ventura and the Fifth

Circuit in Gonzalez-Ramirez list Michigan’s statute among those statutes that follow the MPC’s approach

and require a specific purpose other than to confine or restrain, even for the least culpable means of

conviction. But the D.C. Circuit and the Fifth Circuit cite the current version of Michigan’s § 750.349,

which reads as follows:

(1) A person commits the crime of kidnapping if he or she knowingly restrains another

person with the intent to do 1 or more of the following:

(a) Hold that person for ransom or reward.

(b) Use that person as a shield or hostage.

(c) Engage in criminal sexual penetration or criminal sexual contact with that person.

(d) Take that person outside of this state.

(e) Hold that person in involuntary servitude.

Mich. Comp. Laws Ann. § 750.349 (2006).

by the criminal codes of most states.3 Taylor, 495 U.S. at 598. A survey of state statutes

reveals that twenty-three states follow the MPC’s approach and require a specific,

“nefarious” purpose other than merely restraining the victim in order for an offense to

constitute kidnapping. See Ariz. Rev. Stat. Ann. § 13-1304; Ark. Code Ann. § 5-11-

102(a); Del. Code Ann. tit. 11, § 783; Fla. Stat. § 787.01; Haw. Rev. Stat. § 707-720(1);

Ind. Code § 35-42-3-2; Iowa Code § 710.1; Kan. Stat. Ann. § 21-3420; Ky. Rev. Stat.

Ann. § 509.040(1); La. Rev. Stat. Ann. § 14:44.1; Mich. Comp. Laws § 750.349; Minn.

Stat. § 609.25; Mo. Rev. Stat. § 565.110; Neb. Rev. Stat. § 28-313; N.H. Rev. Stat. Ann.

§ 633:1; N.J. Stat. Ann. § 2C:13-1(a)-(b); N.M. Stat. § 30-4-1(A); N.C. Gen. Stat. § 14-

39(a); N.D. Cent. Code § 12.1-18-01; 18 Pa. Stat. Ann. § 2901(a); S.D. Codified Laws

§ 22-19-1; Vt. Stat. Ann. tit. 13, § 2405(a); Wyo. Stat. Ann. § 6-2-201(a)-(b). See also

De Jesus Ventura, 565 F.3d at 876-77. Notably, Michigan’s current kidnapping statute

is included in this list.4

 In only six states and the District of Columbia is detaining or

confining the victim against his or her will enough. See D.C. Code § 22-2001; Idaho

Code Ann. § 18-4501; Miss. Code Ann. § 97-3-53; Nev. Rev. Stat. § 200.310; Okla.

Stat. tit. 21, § 741; S.C. Code Ann. § 16-3-910; Va. Code. Ann. § 18.2-47. See also De

Jesus Ventura, 565 F.3d at 877. In the remaining states, some other aggravating factor

is required, such as exposing the victim to a risk of physical injury, see Ohio Rev. Code

Ann. § 2905.01, Tenn. Code Ann. § 39-13-303, or moving the victim from one place to

another, see Cal. Penal Code § 207(a), Ga. Code Ann. § 16-5-40, Md. Code Ann., Crim
No. 08-3541 United States v. Soto-Sanchez Page 9

Law § 3-502(a). Additionally, thirteen states include in their definition of kidnapping

secreting or holding or intending to secrete or hold the victim where he or she is not

likely to be found. See Idaho Code Ann. § 18-4501; Iowa Code § 710.1; 720 Ill. Comp.

Stat. 5/10-1(a); Mass. Gen. Laws ch. 265, § 26; Or. Rev. Stat. § 163.225(1); R.I. Gen.

Laws § 11-26-1; Ala. Code §§ 13A-6-40(2)(a), 43, & 44; Alaska Stat.

§ 11.41.300(a)(2)(A); Conn. Gen. Stat. § 53a-91 and 94; Me. Rev. Stat. Ann. tit. 17-A,

§ 301(1)(B)(2); N.Y. Penal Law §§ 135.00 & 135.20; Tex. Penal Code Ann.

§§ 20.01(2)-.03; Wash. Rev. Code §§ 9A.40.010(2) & 9A.40.030(1).

After reviewing these statutes, the Court finds that the generic offense of

kidnapping requires more than unlawful confinement or restraint of the victim. The

generic offense does not necessarily require, however, one of the specific purposes

identified by the MPC. Instead, the generic offense of kidnapping requires restraint plus

the presence of some aggravating factor, such as circumstances that create a risk of

physical harm to the victim, or movement of the victim from one place to another. See

De Jesus Ventura, 565 F.3d at 877-78 (“The most common approach defines kidnapping

to include a particular nefarious purpose. And the majority approach requires some kind

of heightened intent beyond the mere intent to restrain the victim’s liberty. Most

critically, a substantial majority of jurisdictions . . . require some additional element of

intent or severity.”). See also United States v. Moreno-Florean, 542 F.3d 445, 454 (5th

Cir. 2008) (holding that, in addition to (1) knowing removal and confinement and

(2) force, threat, or fraud, the generic, contemporary offense of kidnapping requires the

specified purposes identified in the MPC or “[a]dditional aggravating elements”).

The Michigan statute at issue in this case criminalizes six types of conduct as

kidnapping, if done wilfully, maliciously, and without lawful authority:

(1) forcibly confining or imprisoning any other person within the state

against his will;

(2) secretly confining or imprisoning any other person within the state

against his will;

(3) forcibly carrying or sending such person out of the state;
No. 08-3541 United States v. Soto-Sanchez Page 10

5

In United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007), the Ninth Circuit held

that Florida’s false imprisonment statute does not constitute generic kidnapping. Notably, Florida’s false

imprisonment statute defines the offense as “forcibly, by threat, or secretly confining, abducting,

imprisoning or restraining another person without lawful authority and against his or her will.” Id. (citing

Fla. Stat. § 787.02(1)(a)) (emphasis added). According to the court, the generic offense of kidnapping

encompasses a “nefarious purpose motivating restriction of the victim’s liberty.” Id. (citation and internal

quotation marks omitted). 

Under Michigan law, however, confining another secretly is sufficiently aggravating to bring the

crime within the generic definition of kidnapping. In People v. Jaffray, 519 N.W.2d 108, 119 (Mich.

1994), the Michigan Supreme Court explained that the essence of “secret confinement” kidnapping is

“deprivation of the assistance of others by virtue of the victim’s” isolation and “inability to communicate

his predicament.” This Court is bound by the Michigan Supreme Court’s interpretation of state law,

including its determination of the elements of a Michigan statute. See Johnson v. United States, --- U.S.

----, 130 S. Ct. 1265, 1269 (2010). 

(4) forcibly seizing or confining, or inveigling or kidnapping any other

person with intent to extort money or other valuable thing thereby;

(5) forcibly seizing or confining, or inveigling or kidnapping any other

person with intent to cause such person to be secretly confined or

imprisoned in the state against his will; or

(6) forcibly seizing or confining, or inveigling or kidnapping any other

person with intent to cause such person to be in any way held to service

against his will.

See People v. Wesley, 365 N.W.2d 692, 694-95 (Mich. 1984); People v. Jaffray, 519

N.W.2d 108, 113 (Mich. 1994). Of these six offenses deemed kidnapping by Michigan

when Soto-Sanchez was convicted, five appear to fit within the generic, contemporary

meaning of the offense. The second and fifth offenses require as aggravating elements

that the confinement or imprisonment be “secret”5 and that the perpetrator have an intent

to secretly confine his victim respectively. As noted previously, thirteen other states

include a similar aggravating element in their kidnapping statutes. The third offense

includes as an aggravating element that the victim be carried or sent out of the state. The

fourth offense requires that the kidnapper have an intent to extort money or something

else of value; this is similar to the MPC, which finds that an offense constitutes

kidnapping when the perpetrator has as his purpose holding the victim for ransom or

reward. See Model Penal Code § 212.1 (2001). And the sixth offense requires as an

aggravating factor that the kidnapper intend to cause his victim to be held to service

against his will. See Gonzalez-Ramirez, 477 F.3d at 319 (finding that Tennessee’s

kidnapping was in line with the generic offense where it included as aggravating
No. 08-3541 United States v. Soto-Sanchez Page 11

6

Even if use of force was not one of its elements, this offense might qualify as generic kidnapping

under the Michigan Supreme Court’s interpretation of the statute. See Johnson, 130 S. Ct. at 1269. In

People v. Adams, 205 N.W.2d 415, 422 (Mich. 1973), the Michigan Supreme Court held that, “where

appropriate,” asportation of the victim is a judicially required element of forcible confinement kidnapping

under Michigan law. In this way, the court distinguished forcible confinement kidnapping from other,

minor crimes and preserved the constitutionality of the statute. Id. The court further held that asportation

or movement of the victim is not sufficient if it is merely incidental to the commission of an underlying

lesser crime. Id. In Wesley, the court explained that asportation “incidental to a crime involving murder,

extortion, or taking a hostage is sufficient for kidnapping because such conduct does not present the danger

of overcharging.” 365 N.W.2d at 696. 

elements substantial risk of injury or confinement as a condition of involuntary

servitude). 

The first kidnapping offense under Michigan’s former statute is, however, more

problematic. On the face of the statute, the first offense makes forcible confinement of

the victim sufficient for a charge of kidnapping. As stated previously, only six other

states and the District of Columbia define this conduct as kidnapping. The MPC and

several other states, including the other states in this Circuit, consider this conduct to

constitute a lesser offense of false imprisonment. See, e.g., Ky. Rev. Stat. Ann.

§ 509.020; Tenn. Code Ann. § 39-13-302; Ohio Rev. Code Ann. § 2905.03. Indeed, in

Wesley, the Michigan Supreme Court stated that “[t]he forcible confinement section” of

Michigan’s former kidnapping statute, “taken by itself, describes the common-law

misdemeanor offense of false imprisonment.” 365 N.W.2d at 695. 

The false imprisonment kidnapping offense under § 750.349, however, requires

that the victim be imprisoned or confined “forcibly.” By its clear terms, then, it “has as

an element the use, attempted use, or threatened use of physical force against the person

of another.” See U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). In this way, it still qualifies as a

crime of violence subjecting Soto-Sanchez to a sixteen-level enhancement to his offense

level under the residual clause to the definition of “crime of violence” in § 2L1.2.6

 See

id.

In sum, the six offenses punished by Michigan’s former kidnapping statute either

fall within the generic, contemporary meaning of kidnapping or have an element

involving the use of force. Thus, under the categorical approach, the Court cannot look

beyond the statute. Soto-Sanchez was necessarily convicted of a crime of violence
No. 08-3541 United States v. Soto-Sanchez Page 12

within the meaning of U.S.S.G. § 2L1.2(b)(1)(A) when he pled guilty to attempted

kidnapping in Michigan state court. Accordingly, the sentencing court correctly

enhanced his offense level by sixteen levels, and his 46-month sentence must be

affirmed.

 Even if the Court could look beyond the statute, however, we could not consider

the police report arising from the incident as Soto-Sanchez requests. In Shepard, the

Supreme Court expressly held that courts cannot examine police reports as part of the

modified categorical approach. Shepard, 544 U.S. at 16, 21-23. Instead, courts applying

the modified categorical approach to convictions following guilty pleas are limited to

consideration of the “charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the defendant

assented.” Id. at 16. 

III.

For the foregoing reasons, we affirm Soto-Sanchez’s sentence.